DE LA RENUNCIA VOLUNTARIA

The Department of Defense’s decision as to which space launch provider it selects to meet its mission needs is not a decision that is solely up to the department’s leadership.

This decision is ultimately guided and influenced by the policies issued, not only from within the DoD, but from the Office of the President, the Department of Homeland Security, and a host of other agencies, as well as directives that are codified in public law. These policies should seek to maximize the efficient use of taxpayer dollars to obtain America’s national security objectives.

However, space systems have become the fastest-growing DoD procurement area over the past ten years, increasing at a real annual rate of 16.2 percent per year. It is also quadrupling the space system’s procurement budget, of which maintaining the space launch capability represents 39 percent.²⁴ The predicament remains, does the current practice of using only domestic providers accomplish the national goal of providing a reliable, affordable, and

24 Todd Harrison, Looking Ahead to the FY 2011 Defense Budget: A Review of the Past Decade and Implications for the Future Year Defense Program, 15–17.

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timely means by which the DoD can access to space, or is the DoD being used as a tool to maintain the domestic space launch industry?²⁵

To gain more insight into issue an examination of the governing space-related policies will help determine whether the DoD is using the proper strategy to fulfill its mission requirements. This section takes a holistic view of the governing policies to determine if the DoD is operating with a fiscally responsible strategy, one that preserves and limits national security concerns, or possibly a combination of both. In addition, this section evaluates the current trends and future implications that the current space related policies may hold for the DoD’s access to space capability.

1. 2010 National Space Policy

The National Space Policy provides a broad overview of the nation’s intended near- and long-term goals, along with guidance on how governmental agencies are to meet them. The 2010 National Space Policy was lauded by the Executive Branch’s Office of Science and Technology Policy (OSTP), and the DoD as a policy that would emphasize the importance and necessity international cooperation would play in order for the U.S. government to meet the goals and priorities set forth in the 2010 National Space Policy.²⁶ Michael Nacht, the Assistant Secretary of Defense for Global Strategic Affairs, cited that the “flat” and “declining military space

25 Executive Office of the President, National Science and Technology Council, U.S. National Space Policy, 14.

26 Amy Klamper, “Obama Space Policy to Emphasize International Cooperation,” Space News, November 30, 2009.

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budgets” is one of the driving factors behind the self-proclaimed “dramatic overhaul” of America’s National Space Policy.²⁷ However, the 2010 National Space Policy differs little from the 2006 National Space Policy in regards to bolstering and expanding the DoD’s ability to maintain its assured access to space. In fact, the 2010 policy offers several contradictory policy goals that seek to bolster America’s ability to access space, while helping to preserve America’s national security posture.

While many of the tenets of the new space policy stress a renewed emphasis for more international cooperation, one area stands apart. The 2010 policy states that the United States must “enhance capabilities for assured access to space” and thus directs that “United States Government payloads shall be launched on vehicles manufactured in the United States.”²⁸ Additionally, this policy assigns the Secretary of Defense with the responsibility to act as the space launch provider for both the defense and intelligence sectors with the goal to provide “reliable, affordable, and timely space access.”²⁹

Intuitively, this disagrees with many of the other tenets of the policy, which ultimately stresses that to strengthen and energize America’s space industry and our national defense, the nation must come to accept and promote international cooperation and actively explore the use of

“inventive and nontraditional arrangements” for meeting of

27 Turner Brinton, “International Cooperation Emphasis of Forthcoming U.S. Space Policy.”

28 Executive Office of the President, U.S. National Space Policy, 5.

29 Executive Office of the President, U.S. National Space Policy, 14.

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national goals.³⁰ However, the most contradictory point of this policy is that, while explicitly directing the DoD to use only domestic suppliers, it later directs the Secretary of Defense to implement “plans, procedures, techniques, and capabilities” to protect our national security posture by leveraging strategies that embrace allied and foreign cooperation.³¹ This string of discrepancies and contradictions has distorted how and why the DoD should use international cooperation to achieve the goals set forth in this policy, making it an ineffective tool to ensure the DoD accomplishes its mission in the most effective and efficient manner.

2. National Security Presidential Directive 40

As a direct result of guidance set forth in the U.S.

National Space Policy, the Office of the President issued the U.S. Space Transportation Policy, which further defines the roles, responsibilities, and limitations of the DoD to achieve and maintain assured access to space. The U.S.

Space Transportation Policy, also referred to as National Security Presidential Directive 40 (NSPD 40), outlines, in detail, the rationale for why the exclusive use of domestic space launch providers is prudent.

The fundamental goal of NSPD 40 defines a framework by which the government operates to ensure the continued capability to “access and use space” to support national

30 Executive Office of the President, U.S. National Space Policy, 10.

31 Executive Office of the President, U.S. National Space Policy, 13.

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security interests.³² The first critical point this directive establishes is that it defines for the DoD what assured access to space means to the DoD. The directive states assured access to space is a key component to national security and defines it as “sufficiently robust, responsive, and resilient capacity to allow continued space operations, consistent with risk management and affordability guidelines.”³³ The second main point outlined is that it commits the DoD to use the EELV program for the

“foreseeable future” to launch its payloads as long as it remains within “mission, performance, cost, and schedule requirements.”³⁴ The final point of the directive clearly states that a viable domestic industrial base is the linchpin to maintaining America’s access to space for national security concerns. It goes on to reiterate, once again, that all DoD payloads are to use domestic providers, unless specifically exempted by the Director of the Office of Science and Technology Policy and the Assistant to the President for National Security Affairs.³⁵

The policy does recognize, however, that the question of how to best achieve the mission requirements may not always lie in a domestic-only answer. The directive specifically recognizes that in situations where there is international cooperation readily available to develop and

32 Executive Office of the President, National Science and Technology Council, U.S. Space Transportation Policy (Washington, D.C.: Office of Science and Technology Policy, 2005), 2.

33 Executive Office of the President, National Science and Technology Council, 3.

34 Executive Office of the President, U.S. Space Transportation Policy, 3.

35 Executive Office of the President, U.S. Space Transportation Policy, 7.

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field systems, this restriction does not apply. This point is critical considering that the 2010 U.S. National Space Policy also emphasizes the need to engage and expand the amount of international cooperation the United States has concerning its space-related activities. The U.S. Space Transportation does an excellent job at defining the roles and responsibilities of the DoD in regards to assuring the nation’s access to space. Unfortunately, the current policy, as with the U.S. National Space Policy, is contradictory in its proclamation as to the value of international cooperation while simultaneously restricting its use to assure the DoD efficiently employs its space launch strategy.

3. Homeland Security Presidential Directive 7 and Department of Defense Directive 3020.40

Established in 2002, the Department of Homeland Security’s primary mission was to serve as the focal point to lead the national effort to protect America from those wishing to harm or disrupt our way of life.³⁶ Since that time, it has evolved to encompass many other missions, of which the protection of critical infrastructure is but one.

The Homeland Security Presidential Directive 7 (HSPD 7) establishes a national policy that helps to prioritize critical infrastructure items and then outlines who has the overall responsibility to protect them. The NSPD 7 has

36 Department of Homeland Security, “Strategic Plan: One Team, One Mission, Securing Our Homeland.”

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explicitly identified the DoD as the federal agency responsible to enforce and strengthen the defense industrial base.³⁷

In response to this assigned responsibility, the DoD issued DoD Directive (DoDD) 3020.40, which outlined the roles and responsibilities that the DoD would engage in to protect the defense industrial base. Throughout the directive, several sectors within the DoD were assigned the responsibility to “provide guidance to; monitor the activities of; and review, validate, and advocate funding”

for the protection of key defense industry facilities and capabilities.³⁸ The directive goes on to indicate that the DoD should incorporate requirements for the risk management and mitigation of the defense industry into their acquisition and maintenance contracts.³⁹

While both HSPD 7 and DoDD 3020.40 seek to identify and define how the DoD should go about protecting the defense industrial base, it does a poor job at detailing exactly how far the government should go to “protect and preserve” these key resources. Such ambiguity, without clarification, leads to the speculation that one method of protecting the industrial base may be through the awarding of government

37 Text of the Homeland Security Presidential Directive 7: Critical Infrastructure Identification, Prioritization, and Protection, as issued by the U.S. Department of Homeland Security on December 17, 2003, on the Department of Homeland Security’s website.

38 Department of Defense, Department of Defense Directive 3020.40 (Washington, D.C.: Department of Defense, 2010), 7.

39 Department of Defense, Department of Defense Directive 3020.40, 12.

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procurement contracts to maintain a viable industry, regardless of whether it is in the department’s best interests to do so.

4. Policy Regarding Assured Access to Space:

National Security Payloads U.S. Code Title 10, Section 2273

The U.S. code title 10, section 2273) was amended in November of 2003 (to incorporate a new law concerning the DoD’s procurement and sustainment of America’s capability to access space. This piece of legislation guides the actions of the DoD’s acquisition practice and is perhaps the most influential and unexplainable piece. The law states the DoD shall take appropriate actions to ensure its space launch capability is preserved, and specifically states the DoD must protect the following aspects of it:

(1) the availability of at least two space launch vehicles (or families of space launch vehicles) capable of delivering into space any payload designated by the Secretary of Defense or the Director of National Intelligence as a national security payload; and (2) a robust space launch infrastructure and industrial base.⁴⁰

Through the codification of these requirements, the DoD is legally obligated to sustain two domestic launch service providers and ensure that the industrial base must be maintained. While this law helps to preserve the DoD’s ability to provide assured access to space, it fails to

40 Cornell Law School, Legal Information Institute, “US Code: Title 10, Subtitle A, Part IV, Chapter 135, § 2273, Policy regarding assured access to space: national security payloads.”

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recognize that it may not be helping the DoD meet its mission requirements in the most efficient and effective manner possible.